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We have been told by the CO, during the solicitation process and in a debrief, that non-government employees could not be on an evaluation panel and could not evaluate contractor's proposals. She insists that this is required by the FAR.

We have not heard of this, and cannot find such a restriction in the FAR. In fact, 9.505-3 is entitled "Providing Evaluation Services."

So, is there such a restriction elsewhere in the FAR, or is she making this up?

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I'm interpreting "nongovernment employees" to mean contractors. The CO is incorrect. FAR 7.503( c )(12)(ii) would prohibit a contractor from "Participating as a voting member on any source selection boards." However, FAR 7.503(d)(8) and (14) permit "Contractors providing technical evaluation of contract proposals" and "Contractors participating as technical advisors to a source selection board or participating as voting or nonvoting members of a source evaluation board."

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Don, how do you reconcile the two sections you reference? The first says contractors shall not be used as voting members of any source selection panel, while the second indicates they may act as voting members. Complicating the question even more is 37.203 which says contractors cannot be paid to conduct evaluations unless certain conditions are met, but says nothing about contractors acting as voting members of souce selection panels.

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Retreadfed,

The FAR distinguishes between a source evaluation board and a source selection board. A contractor can be a voting member on the former, provided the agency complied with FAR 37.203. A contractor could not be a voting member on the latter, but could be a technical advisor to the latter.

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Guest Vern Edwards

The terms "source selection board" and "source evaluation board" appear only in FAR 7.503. They appear nowhere else in the FAR itself, which surprised me. FAR 3.104-1 and 3.104-3 use "source selection evaluation board." FAR Part 15 uses only "evaluation team." Five agency FAR supplements use "source evaluation board." Only the Department of Labor FAR supplement uses "source selection board."

The only distinction I can think of between a "selection board" and an "evaluation board" is that the first refers to a FAR Part 15 acquisition and the second might refer to an architect-engineer "evaluation board" pursuant to FAR 36.602-2.

The new OFPP policy on inherently governmental functions, published in the Federal Register on September 12, 2011, 76 FR 56227, which will be incorporated into the FAR, makes a distinction between "inherently governmental functions" and "closely associated" functions. Closely associated functions may be performed by contractors. The policy states, at 76 FR 56234, in the table, that "participation as a voting member on a source selection board" is "inherently governmental," and that "participating as a technical advisor to a source selection board or as a nonvoting member of a source evaluation board" is "closely associated." Note the switch from "selection" to "evaluation" in the second passage. Note also the use of "nonvoting" in apparent connection with "source evaluation board." So there is an express prohibition against contractors participating as voting members of a "selection board," and an implied prohibition against participating as voting members of an "evaluation board." My own belief is that contractors cannot vote in competitive procurements. Period. I think that Fara Fasat's CO is correct in the sense that contractors cannot ordinarily participate in proposal evaluations in any capacity, but can do if and only if no government personnel are available. FFRDCs are an exception.

Arguably, the rule in FAR 37.203(d) does not apply to A-E evaluation boards, because they do not evaluate "proposals."

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What I've seen done is that support contractors serve as advisors - they read the proposals/listen to the orals and the Q&A. When the evaluators are doing their individual evaluations, they are present only to answer questions and they leave before any consensus discussion begins. Sometimes the TEB chair will give the evaluators a few minutes to gather their questions at the beginning and then the tech advisors give their answers and depart before the individual evaluations are done. But the advisors are always briefed beforehand that they are not to give opinions on ratings but to help members understand the benefits or risks to the Govt. And yes, that's a fine line that some have trouble not crossing

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I interpret the distinction between "source selection board" and "source evaluation board" to be similar to the distinction made between "source selection advisory council (SSAC)" and "source selection evaluation board (SSEB)" in the DoD Source Selection Procedures. According to the DoD guide, the SSEB (which I believe to be the "source evaluation board" at FAR 7.503) has the following responsibilities:

1.4.4.2.2.1. Conduct a comprehensive review and evaluation of proposals against the solicitation requirements and the approved evaluation criteria.

1.4.4.2.2.2. Ensure the evaluation is based solely on the evaluation criteria outlined in the RFP.

1.4.4.2.2.3. Assist the SSEB Chairperson in documenting the SSEB evaluation results.

1.4.4.2.2.4. Support any post-source-selection activities, such as debriefings and post-award reviews/meetings, as required.

The SSAC (which I believe to be the "source selection board" at FAR 7.503) has the following responsibilities:

1.4.3.3.2.1. Review the evaluation results of the SSEB to ensure the evaluation process follows the evaluation criteria and the ratings are appropriately and consistently applied.

1.4.3.3.2.2. Consolidate the advice and recommendations from the SSAC into a written comparative analysis and recommendation for use by the SSA in making the best-value decision. Ensure that minority opinions within the SSAC are documented and included within the comparative analysis.

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Guest Vern Edwards

Don:

There is no justification for your interpretation.

Retread:

18 U.S.C. 1905 (the Trade Secrets Act) has no bearing on the issue. In my experience, offerors were put on notice in the RFP that contractors would participate in the evaluation and were required to acknowledge and authorize such participation. Contractors sitting on selection/evaluation boards, mainly FFRDCs in my experience, were required to enter into nondisclosure agreements with the firms submitting proposals.

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Vern, I agree that is how agencies normally address the use of contractors in the proposal evaluation process. However, it is not self evident to me that a disclosure under these circumstances is not a violation of 1905. Specifically, what is the law that permits the contracting officer to do this without violating 1905?

I have heard contracting officers say that contractors waive the protections of 1905 if they submit a proposal after being placed on notice that contractors will be used to evaluate proposals. However, that is not a satisfactory explanation without identifying what authority contractors have to waive 1905, which can only be enforced by the government through a criminal prosecution.

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Guest Vern Edwards

Retread:

Agencies have been using contractors to evaluate proposals for decades. DECADES. I know of not one single prosecution for violation of the Trade Secrets Act arising out of the practice. Do you?

This is not worth talking about.

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Here's the pertinent part of 18 U.S.C. 1905 with an emphasis added:

Whoever, being an officer or employee of the United States or of any department or agency thereof . . . publishes, divulges, discloses, or makes known in any manner or
to any extent not authorized by law
any information coming to him in the course of his employment or official duties . . . which information concerns or relates to the trade secrets . . . of any person, firm, partnership, corporation, or association . . . shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

Inasmuch as the FAR is Title 48 of the Code of Federal Regulations, and the FAR permits contractor personnel to serve on source selection teams, a contracting officer who releases an offeror's information to a contractor properly serving on a source selection team is acting within the law. 18 U.S.C. 1905 doesn't reach here.

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The FAR is a regulation, not a law. The "laws" on which one might rely to permit the disclosure of such information to contractors (and thus, avoid a violation of 18 USC 1905) in this instance are 10 USC 2383 ("Contractor performance of acquisition functions closely associated with inherently governmental functions") or, for non-DOD, 41 USC 419 ("Contracting functions performed by Federal personnel").

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The FAR is Title 48 of the Code of Federal Regulations. These regulations are commonly seen as administrative law. They are not statutes, and if one defines laws meaning only statutes, then the FAR is not law. But that might be too narrow a definition. We have statutory law, case law, and administrative (or regulatory) law.

When a contracting officer releases an offeror's information to a contractor properly serving on a source selection team, he or she is acting within the law -- and his or her reference is the FAR.

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Does the FAR really permit disclosure of contractor's proposals to a support contractor? Consider the following from FAR 3.104-4 "Except as specifically provided for in this subsection, no person or other entity may disclose contractor bid or proposal information or source selection information to any person other than a person authorized, in accordance with applicable agency regulations or procedures, by agency head or the contracting officer to receive such information." The key to this is that the release must be in accordance with agency regulations or procedures. I don't know how many agencies have such regulations or procedures, but I have checked the DFARS and the PGI. Neither provides any procedures for the release of contractor proposals to support contractors.

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The FAR is a regulation, not a law.

I recognize this is off topic, but I've seen many instances where people operate under the misconception that Federal reguations are somehow not laws. I even recall one of my DAU CON 100 professors preaching this.

The Constitution is the supreme law of the United States. Acts of Congress (i.e., legislation in the form of Bills that are passed by both Houses and signed by the President or passed on veto overide) are law. Federal regulations are law, if properly promulgated pursuant to an authority granted by an Act of Congress. Accordingly, the Code of Federal Regulations, and as a consequence, the FAR are law.

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Retreadfed --

Visit http://www.acq.osd.mil/dpap/policy/policyvault/USA007183-10-DPAP.pdf and do a search for "non-government" you'll see all the agency procedures you need to see -- this link is to the March 4, 2011, letter from the Director of Defense Procurement and Acquisition Policy. Using contractor personnel to support a source selection in DoD is permissible.

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I recognize this is off topic, but I've seen many instances where people operate under the misconception that Federal reguations are somehow not laws. I even recall one of my DAU CON 100 professors preaching this.

The Constitution is the supreme law of the United States. Acts of Congress (i.e., legislation in the form of Bills that are passed by both Houses and signed by the President or passed on veto overide) are law. Federal regulations are law, if properly promulgated pursuant to an authority granted by an Act of Congress. Accordingly, the Code of Federal Regulations, and as a consequence, the FAR are law.

Some regulations have the force and effect of law, but are not law. The FAR is a regulation having the force and effect of law, but it is not a law.

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Guest Vern Edwards

Retread:

1. Do you believe that disclosure to a nongovernment third party would be a violation of the Trade Secrets Act if the offeror gave the government permission to disclose the information to a nongovernment third party or voluntarily assented to the disclosure?

2. Do you believe that the Department of Justice would prosecute a government employee for disclosing "trade secrets" to a nongovernment third party if the offeror gave the government permission to disclose the information to a nongovernment third party or voluntarily assented to the disclosure?

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Guest Vern Edwards

Some regulations have the force and effect of law, but are not law. The FAR is a regulation having the force and effect of law, but it is not a law.

Retread:

I'm not sure what your point was in making that statement. I assume that you meant that "authorized by law" in 18 USC 1905 does not include regulations that have only the force and effect of law. If that was your intent, you are wrong. The Supreme Court has expressly ruled that "authorized by law" includes regulations that have the force and effect of law. See Chrysler Corp. v. Brown, 441 U.S. 281, headnote 2, and 295 - 316 (holding that agency regulation in question did not have requisite force and effect of law). See also Corpus Juris Secundum, Section 111, which describes the holding in Chrysler as follows:

A disclosure is authorized by law if it is authorized by a properly promulgated substantive agency regulation, which is the product of a congressional grant of authority and promulgated in conformity with procedural requirements imposed by Congress. A mere interpretive regulation or general statement of agency policy cannot be an authorization by law.

Footnotes citing Chrysler Corp v. Brown omitted. However, I do not believe that FAR authorizes disclosure under 18 USC 1905, and the DPAP memo cited by ji20874 is not a regulation having the force and effect of law.

I believe that a company can authorize disclosure of its own information. Disclosure is not a violation if the owner of the information authorized disclosure. It's just that simple. This has long been a settled matter. The Justice Department would be laughed out of court if it tried to prosecute a government official for disclosing information that the owner of the information authorized the government to disclose. I don't believe that the Justice Department has ever prosecuted a government official for letting a nongovernment employee see an offeror's proposal if the offeror gave the government permission to do so. I don't believe the DoJ has ever issued a bulletin warning against such conduct.

This is a non-issue.

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Vern, you have read much too much into my comment. My only purpose in making the comment you referenced was to identify the proper status of the FAR in response to what MBrown had said concerning the FAR being law. Nothing in my comment addressed or was intended to address what the FAR can or cannot authorize government employees to do.

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Retread:

1. Do you believe that disclosure to a nongovernment third party would be a violation of the Trade Secrets Act if the offeror gave the government permission to disclose the information to a nongovernment third party or voluntarily assented to the disclosure?

2. Do you believe that the Department of Justice would prosecute a government employee for disclosing "trade secrets" to a nongovernment third party if the offeror gave the government permission to disclose the information to a nongovernment third party or voluntarily assented to the disclosure?

I'm not sure what the answer is to your questions. To parse President Clinton, it may depend on what the meaning of "voluntarily assented" is. Take the DoD policy statement on source selection for example. Assuming that it is a legitimate authorization for contracting officers to release bid and proposal information, it requires contracting officers to obtain the consent of offerors before releasing their information to a third party. The way I have seen contracting officers address this process is to put a statement in the RFP notifying potential offerors that support contractors will be used in the evaluation of proposals, sometimes naming the contractors. The RFP will go on to say that by submitting a proposal, offerors consent to the release of their information to the support contractors. Further, if the offeror objects to the release of its information, its proposal will not be considered. Is this truly voluntary assent? I don't know.

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